la 



THE ELECTORAL VOTE. 

,S7 



SPEECH 






HON. J. ¥. STEVENSON, 



OF KENTUCKY, 



IX THE 



SENATE OF THE UNITED STATES, 



December 6, 1876, 



WASHINGTON. 
1876. 



$*$* 



SPEECH 

OF 

HON. JOHN W. STEVENSON 



The Senate having under consideration the motion to print the message of the 
President transmitting a letter, accompanied by testimony, addressed to him by 
Hon. Johx Shermax and others, in relation to the canvass of the vote for electors 
in the State of Louisiana — 

Mr. STEVENSON said : 

Mr. President: I feel constrained to vote against the pending- 
motion to print the report and accompanying documents just commu- 
nicated by the President to the Senate. In doing so I mean no per- 
sonal disrespect to the Executive, and still less to the distinguished 
gentlemen who have signed that report. 

These papers have not been read. I do not know what they con- 
tain. They are clearly not official state papers, and emanate from no 
department of the Government. I insist that they should go to the 
Committee on Printing, and I shall presently move that reference. 

The Senator from Ohio, [Mr. Sherman,] informs us, that the paper 
communicated by the President, is a report from himself and certain 
other distinguished republicans, detailing the proceedings of the re- 
turning board of Louisiana in their recent cauvass of the vote for the 
appointment of electors for President and Vice-President in that 
State. These gentlemen, we learn, were invited by the President of 
the United States to proceed to New Orleans, and witness that count. 
We know, from what has just fallen from the Senator from Ohio, [Mr. 
Sherman,] that this paper is ex parte. Besides, it is partial. It con- 
tains only that portion of the testimony offered by the republicans, 
but contains no proof offered by the democrats, and read before this 
returning board. Certain prominent democrats, at the request of the 
chairman of the national democratic committee, went likewise to 
New Orleans^ some of whom witnessed the proceedings of the return- 
ing board. 

We shall probably receive, in a day or two at furthest, from these 
gentlemen their version of the official proceedings before that board, 
accompanied by the entire testimony upon which its conclusions 
rest. I should prefer, therefore, that both reports, with the accompa- 
nying documents, and all the testimony taken before the returning 
board, should go to the Committee on Printing and be printed to- 
gether. Such a course seems to me to be one eminently in the inter- 
est of truth, justice, and fair dealing. The printing of both reports 
could only lead to a delay of a few days, and I am satisfied that such 
action would be much more satisfactory to the country at large 'than 
the printing of an ex parte one now. 



The present hour, Mr. President, is too full of real peril to the en- 
tire country for leaders, on either side, to attempt to seek any party 
advantage by inflammatory appeals in advance to the partisan pas- 
sions and prejudices of the people. 

I am, sir, as you know, a life-long democrat of the straitest sect. 
I acknowledge a ready allegiance to the just behests of legitimate 
party discipline ; hut I solemnly declare, that, if I know myself, I will 
go as far in the support of all lawful and constitutional measures for 
the prompt inauguration of that man as President of the United 
States, who has legally received in the late election a majority of the 
votes cast by all the electoral colleges in the several states, whether 
that man be Rutherford B. Hayes, or Samuel J. Tilden. 

The elevation of either of these eminent citizeus to the exalted and 
responsible position of Chief Magistrate of the United States, deserv- 
edly great as I concede such an honor to be, sinks into paltry insig- 
nificance compared with the higher duty of preserving, intact, the free 
suffrage of the American people ; of seeing to it that when the peo- 
ple of all the States entitled to vote for the appointment of electors 
for President and Vice-President have exercised that right under the 
form and sanctions of law, the voice of the majority when thus ex- 
pressed and clearly ascertained, shall become effective and potential 
against fraud or usurpation, whether Federal or State. 

Our fathers oue hundred years ago sought the preservation of their 
liberties under a new and novel form of government which found its 
support upon the consent of the governed. It sprang from the people 
as the acknowledged source of all political power. 

To this extent, it differed from the older representation of the British 
House of Commons. The latter found its origin not so much in the 
popular supremacy of the people, as in the stern requirements of the 
Crown. 

Knights and burgesses were at first summoned, often against their 
will, to a parliament called by the king, and frequently, amid mur- 
murs of popular discontent, and popular remonstrances against the 
increased expenditure which such representation entailed. 

But the king sought their aid and advice, in his contest against the 
power of the feudal barons in the upper and hereditary branch of the 
English Parliament. 

Time gave a more popular impress to this system of representation 
in England, until the knights and burgesses were looked to as the 
guardians of popular rights, and ultimately, became the bulwark of 
safety against the usurpations and encroachments both of the Crown 
and the lords. 

But our American representation was always popular, and emanated 
directly from the people. Representation rests on suffrage ; suffrage 
is the delegation of power from a freeman to his selected agent. This 
right to choose representatives, is the portion of political power be- 
longing to every qualified elector, and through this channel, repre- 
sentatives become invested by the people with executive, legislative, 
judicial, and delegated power. 

Free suffrage, is, therefore, the vital breath of American represent- 
ative government. Its exercise to be effective must be guarded, pro- 
tected, and secured against violence, force, and fraud. The manner, 
time, and place of its exercise are all ordained, and prescribed by pre- 
vious law. The right of every qualified elector to vote involves the 
correlative right to have that vote counted. The transcript of all 
the votes cast must be certified iu certain and definite form, prescribed 
by law, to the public officer charged officially with the high trust of 



proclaiming the true result of the total vote cast.. It follows there- 
fore that auy interference with the right of an elector entitled to the 
right of suffrage to vote, or any falsification of the returns of 
the vote as cast or any false and fraudulent certificate of the verity 
of the result of the entire ballot is an utter and absolute overthrow of 
the fundamental principle on which our system of American self-gov- 
ernment rests. For nearly a century, the will of the American j)eople, 
as ascertained and expressed, in the mode and manner prescribed by 
law, has been always acquiesced in, and the rulers chosen by a major- 
ity of the qualified electors, have been peaceably installed. It has 
been the distinguishing characteristic, and chief excellence of Ameri- 
can constitutional government in the past, that the people irrespective 
of party, have lent a ready obedience to the self-imposed limitations 
upon their own power as electors placed in the Constitution as a bar- 
rier against the sudden impulses of frenzy or passion. It is this con- 
servative principle which has distinguished the regular action of 
American popular power from the temporary and violent convulsions 
for liberty in the Old World — "a liberty created by arms to-day, and 
crushed by arms to-morrow." For the first time in our history, we 
are threatened with a popular struggle as to the result in the appoint- 
ment of presidential electors in the several States on the 7th of No- 
vember last. 

I shall not anticipate that issue, or seek by anything I shall say, to 
forestall popular opinion, or increase the public excitement which its 
consideration involves. "Sufficient unto the day is the evil thereof." 
It will come soon enough. I regret that the honorable Senator from 
Ohio, [Mr. Sherman,] should have deemed it proper, before all the 
reports and accompanying documents had been printed, to have pre- 
cipitated a debate upon Louisiana affairs, and by singling out a few 
isolated cases of individual outrage, and wrong, to have indulged in 
so impassioned an appeal to the prejudices and partisan feelings of 
the country. Let me tell that Senator that such appeals can be pro- 
ductive of nothing but mischief. 

If ever there was a time when party excitement and partisan zeal 
should be restrained within the walls of the Capitol, it is at this very 
hour. It is useless to deny that already a very considerable portion 
of the American people are impressed with the belief, that the votes 
for the appointment of electors in two or more of the Southern States, 
have not been fairly counted, and that an effort has been made by 
fraudulent and improper means through the agency of returning 
boards to change the true result of that vote. 

I shall not stop to inquire at this moment, whether this popular sus- 
picion is ill or well founded. The facts have not yet been presented 
on which a definite and final opinion can safely rest. I have a well- 
founded impression, which might be removed by proof. Committees 
of Congress have already been sent to Louisiana, Florida, and South 
Carolina, with full power to investigate thoroughly all the circum- 
stances and facts connected with the appointment of electors in these 
three States. Other committees appointed by the Senate will probably 
soon follow. All these committees will, no doubt, institute a full and 
thorough examination of the officers and soldiers stationed in the sev- 
eral parishes of Louisiana during the election, and will ascertain and 
report with reasonable certainty what was the true and exact vote and 
whether violence or intimidation existed or not. Within a few weeks 
these reports, with all the testimony, will be laid before Congress and 
the country. Statesmanship and prudence alike demand that Con- 
gress, upon whom the duty of determining the result may ultimately 



rest, should quietly await that period. It was iu this aspect that the- 
speech of the Senator from Ohio [Mr. Sherman] caused uie so much 
surprise aud such deep regret. No party should desire to see a Presi- 
dent elected or inaugurated except upon clear evidence, that he has 
received a majority of all the electors appointed in the several States. 
Still less, should any American citizen, he elevated to that exalted 
position with the slightest taint of fraud, or of just suspicion upon 
his presidential garments. 

The Senator from Ohio [Mr. Sherman] has heen pleased to tell us 
what he saw of the operations of the returning hoard. He has dwelt in 
terms of burning and eloquent denunciation of special acts of violence,, 
wroug, and iutimidation which he iusists marked the action of the 
democratic party in the late election in Louisiana, and which justifies,, 
as he says, the returning hoard in setting aside the entire vote at 
various precincts in many parishes of Louisiana, therehy disfranchis- 
ing thousands of the white and colored citizens alike in that down- 
trodden State. The Senator not only tells us of his approval of the 
action of the returning hoard of Louisiana, hut he hecomes eloquent 
in his compliments and commendation of hoth the high personal and 
official character of the individuals who constitute that tribunal. I 
confess I was astonished at the eulogium pronounced by the Senator 
on this hoard. I was myself in New Orleans for a week, upon a mis- 
sion similar to that which carried the Senator from Ohio to that city. 
I enjoyed the pleasure of meeting and sojourning at the same hotel 
with him and his republican confreres. I was not before the return- 
ing board. I witnessed none of its proceedings and heard none of the 
testimony offered before it. I left the day after it commenced its ses- 
sions. While I should prefer to await the return of the congressional 
committees and the publication of their reports before I said one word 
on Louisiana affairs, I cannot permit the impassioned speech of the 
Senator from Ohio to go to the country Avithout taking issue with him 
on his facts, and entering as I do, my earnest and strong dissent to the 
conclusions put forth by him that the late appointment of electors in 
Louisiana was carried by force and intimidation practiced by the dem- 
ocratic party on the colored vote. I utterly deny that the returning, 
board were in any way justified in their action. 

I do not believe that the conclusions of the Senator from Ohio [Mr. 
Sherman] touching that election can be maintained and supported 
by legal and impartial proof. During my sojourn in New Orleans, I 
was in daily intercourse with influential men of Louisiana of all par- 
ties, both white and colored. I sought through every channel proof 
and information touching the true character of that election. 1 saw 
and talked with electors from various portions of the State, many of 
them officials, who conducted the election, and many others who were 
candidates for both executive and legislative offices during that can- 
vass. I talked to republicans as well as to democrats. The conclu- 
sion which I reached, from all I saw or heard was that the election in 
Louisiana was in all respects quiet and peaceable, and that its peo- 
ple appointed presidential electors for Tilden and Hendricks by a 
majority of 8,957 for the highest Tilden elector over the lowest Hayes 
elector, and a majority of 6,300 for the lowest Tilden elector over the 
highest Hayes elector. This conviction was honestly formed and is. 
sincerely entertained by me at the present hour. Should testimony 
be hereafter brought to satisfy me that I am in error, or even to raise 
a doubt as to the fairness of the Louisiana vote, I shall gladly 
surrender that opinion and make my official action accord with the 
result disclosed. My conviction of the peaceable and fair character 
of that election rests upon a few facts which I proceed to state. 



First, it is admitted by all, that upon the face of the poll-hooks Til- 
den and Hendricks carried Louisiana by a majority of from seven to 
nine thousand votes. The returning board of Governor Kellogg will 
scarcely deny that fact. The country will take notice that this major- 
ity was obtained in a State where the republican supremacy has been 
absolute for the past ten years and where all State and Federal patron- 
age and power have been enjoyed and exercised exclusively by repub- 
licans. In addition, at and long prior to the election, Federal soldiers 
were stationed in the various parishes throughout the State. It seems 
absolutely unnatural and improbable to me that any system of ruth- 
less, wholesale, intimidation, and violence could have been exercised 
by the whites over the colored voters without the knowledge of officers 
and soldiers, and without instant exposure and suppression. How 
could violence and intimidation exist without detection ? Would not 
prompt application have been made by the republican supervisors of 
election to the military for the protection of the colored electors in 
the parishes where such lawlessness existed? No officer or soldier has 
been introduced to prove that he was called upon, either before or 
during the election, to suppress violence or intimidation in any soli- 
tary precinct in Louisiana or to prove that any such violence or in- 
timidation existed or occurred. On the contrary, Major Bascom, an 
officer of high character in the Army of the United States, a republican 
in politics and an avowed supporter of Hayes and Wheeler, who had 
been stationed for many months before the election in one of the dem- 
ocratic parishes rejected by the returning board, and who was present 
at the time of the election in this excluded parish — West Feliciana, 
I believe — stated j>ublicly to the democratic, and I believe also to the 
republican committee, that he witnessed no intimidation, at or before 
the election, over any elector, but that a more quiet and peaceful elec- 
tion was never held in any State than was held in that parish. His 
soldiers if called upon would, I doubt not, fully support their com- 
mander in all his statements touching the peaceful character of the 
election there. The very failure of the republicans to prove before the 
returning board, by Federal officers and soldiers stationed in all the 
excluded parishes of Louisiana, the existence of a solitary act of vio- 
lence or intimidation is strong and persuasive testimony that no such 
violence or intimidation existed. 

Mr. President, I put it to the candor of republican Senators to ex- 
plain this remarkable omission. Federal soldiers, at the solicitation 
of Governor Kellogg, were stationed before and during the election 
in Louisiana in almost every parish in that State to protect the colored 
electors from force, violence, and intimidation. I challenge the Sena- 
tor from Ohio to find an officer or soldier stationed in either East or 
West Feliciana, in Morehouse, in Ouachita, or in Monroe Parishes, who 
will support him in his fierce denunciations of the outrages against 
colored electors in those parishes. Does that honorable Senator hope 
to persuade the country that intimidation could have been practiced 
in the excluded parishes without the knowledge or cognizance of the 
officers and soldiers stationed there ? I submit to the honorable Sena- 
tor that the*testimony of officers and soldiers of the United States 
Army would receive higher credibility by the entire country as to the 
existence of violence and intimidation than the varying and diverse 
statements of that poor old negro woman Pinkston, on whose testi- 
mony the Senator dwells with so much pathos and feeling. 

I was not before the returning board and I have not read her testi- 
mony. I have been informed that she was contradicted by at least 
two credible witnesses in her statement that the killing of her huf- 



8 

band and child grew out of, or was in any way connected with poli- 
tics. Allow me further to say that the testimony of Major Bascom, 
as to the character of the election in Feliciana Parish, was fully cor- 
roborated by the Episcopal bishop in Louisiana, known everywhere 
throughout the length and breadth of our land as an eminently pious 
and learned prelate, conservative and just in his feelings, wholly un- 
connected with politics, a messenger of peace, truth, and. love, inca- 
pable of intentional injustice to any sect or party. This gentleman 
stated to me that he was making his episcopal visitation through the 
State of Louisiana during the late election and was present in one or 
more of the parishes excluded by the returning board, perhaps East 
and West Feliciana. He told me that he not only did not see the slight- 
est intimidation, force, or violence by the white over the colored elect- 
ors, but that he was well satisfied from what he saw, heard, and 
knew in these parishes that none existed. He said that a large number 
of colored voters in West Feliciana informed him that they were tired 
of republican rule and rejoiced in the privilege afforded them by the 
presence of the soldiers of voting the democratic ticket. 

Similar statements were made to me by gentlemen of the highest 
credit and character, among whom I will name Governor Nichols and 
Attorney-General Ogden. These gentlemexi canvassed and went 
through every portion of Louisiana during the late election. They 
assured me that there was no system of violence and intimidation, 
but that the election throughout the State was in the main quiet and 
peaceable. They both knew and met in their canvass large numbers 
of colored voters in many parishes of Louisiana who stated to them 
that, though formerly republicans, voting for years the republican 
ticket, that in consequence of the incompetency of the dominant offi- 
cials in Louisiana to afford their children the advantages of education, 
for which the scanty earnings of their hard labor had been so severely 
taxed, and in consequence of the corruption and inefficiency of the 
republican State government in Louisiana, they desired a change and 
intended to vote the democratic ticket. This information was fully 
corroborated by a large number of colored electors who came fre- 
quently to the democratic committee-room, both from rural parishes 
and from the city of New Orleans, stating that they themselves had 
freely and voluntarily voted the democratic ticket at the last election, 
and that they knew of many others who had done the same thing. 

I might cite, too, the written and I believe sworn statement of a col- 
ored elector in one of the excluded parishes, Morehouse perhaps, set- 
ting out that he was the president of a democratic club in his precinct, 
composed of forty-five colored members, all of whom voted the demo- 
cratic ticket, and that he knew personally of changes enough of col- 
ored voters from the republican to the democratic party in that 
parish fully to account for the reduced republican majority at the 
late election as compared wdth the vote cast there two years ago. 

And yet, the change of the colored vote from republican to demo- 
cratic, whenever it occurs in Louisiana, is seized upon by the republi- 
can party as the strongest evidence of intimidation. 

I cannot believe, from all I saw and heard while in New Orleans, 
that any such wholesale system of violence and intimidation as that 
described by the Senator from Ohio [Mr. Sherman] prevailed at the 
late election in Louisiana. 

Whenever such violence is made apparent by reliable and impartial 
testimony, I shall be ready to go as far for the protection of free suf- 
frage, irrespective of color, as any Senator upon this floor. 

That there have been crimes and wrongs committed in Louisiana 



9 

which shock our humanity I do not doubt. I deplore their occurrence 
as much as the honorable Senator from Ohio possibly can. But crimes 
are not confined to Louisiana. They exist everywhere. They may 
occur more frequently in the Southern than in Northern and West- 
ern States. They probably do. And the reason for this is to be traced 
to the sudden and fundamental change in the social and political 
condition of the people of the South, growing out of the late war. 

I do not, however, believe that these outrages in the main have any- 
thing to do with politics ; still less, that there is any organized system 
of intimidation practiced by the whites over the colored voters in the 
South. The quiet condition of Georgia, Alabama, and Texas abund- 
antly attests the utter groundlessness of such a charge. Like causes 
produce like effects. If the white electors sought by a system of vio- 
lence to control the suffrage of colored electors, some evidence of it 
would undoubtedly appear in these last-named States. 

And yet we know that a few years ago this same stale, threadbare 
cry of intimidation and oppression was urged by the republicans in 
Alabama and Georgia for setting aside the elections there. 

My honest and deliberate conviction is — and I think the fact will 
be demonstrated, if the true condition of Louisiana affairs could become 
known — that whenever political intimidation and force have occurred 
in that State it will be found that such outrages have been practiced 
by colored republicans over men of their own race, who sought a change 
in their political relations, rather than by white over colored electors. 

Mr. President, will the honorable Senator from Ohio [Mr. Sherman] 
tell the country why the republican party in Louisiana have not sup- 
pressed the system of violence and internal disorder so gloomily de- 
scribed by him as existing in that State? They have had absolute 
and entire control of that State for ten years past. Every office, from 
the highest to the lowest— executive, legislative, and judicial — has 
been filled exclusively by republicans of the most extreme party views. 

Why has not the republican party in Louisiana suppressed disorders, 
crimes, and intimidation by a rigid enforcement of the law ? In addi- 
tion to the absolute supremacy of republican rule in the State govern- 
ment, we know that Governor Kellogg has received the constant sup- 
port of the Federal Government. United States troops have for six 
years past been sent, without stint, to that unfortunate State. 

The one hundred and third article of the constitution of Louisiana 
declares : 

The privilege of free suffrage shall be supported by laws regulating elections, and 
prohibiting under adequate penalties all undue influence thereon from power, brib- 
ery, tumult, or other improper practices. 

Why has not Governor Kellogg, backed by a republican Legislature, 
enforced this constitutional provision, and restored peace and good 
government, by a prompt and rigid enforcement of the statutes against 
force and violence ? 

Havetheydoneso? What says my honorable friend from Ohio? Why, 
Mr. President, I appeal to republican testimony to prove that for six 
or eight years past nothing but wrong, anarchy, and disorder have 
marked the administration of public affairs in that State. For nearly 
six years Louisiana has had but one representative in this Chamber. 
The right of the people in that State to vote, or to have their votes 
counted, has been openly disregarded and trampled upon by republican 
returning boards in that down-trodden State. 

So far from supporting the individual elector in his constitutional 
right to vote, these returning boards have, in utter defiance of the 
constitution and laws of Louisiana, absolutely ignored the right 



10 

of free suffrage. Within six years past the country has seen the 
State government of Louisiana subverted by a United States district 
judge, supported by the military power of the United States ; and still 
later, the American people have seen representatives of the Louisiana 
Legislature, legally chosen by the people of that State, ejected from 
their chamber in the capitol by'Federal soldiers, and representatives, 
not elected, put in their places by the arbitrary, unjust, and illegal 
action of the present returning board in Louisiana. And all this suc- 
cessful usurpation upon the constitutional rights of the free people 
of Louisiana has been accomplished bv the republican rulers in that 
State. 

I doubt not that in the failure of Governor Kellogg and in his utter 
incapacity, even with the free use of the Army of the United States, 
to restore order, to execute the laws, and to establish and maintain 
good government will be found the true explanation for the change of 
the colored vote from the republican to the democratic party in the 
late appointment of presidential electors in Louisiana. But the same 
cry of intimidation by the white over the colored voters, which has 
successfully sustained the past usurpations of returning boards in 
Louisiana, in their ribald and open disregard of the constitutional 
rights of the people of Louisiana, is sought again to be made potential 
in the late presidential contest. 

The people of Louisiana have quietly submitted to their deprivation 
of suffrage in the choice of their rulers under the State government 
for years. The problem which now confronts the people, not of 
Louisiana alone, but of the United States, is, shall the usurpations 
of this same returning board, successful as it has been in the past 
find a wider theater for its action in the illegal suppression of the vote 
of the people of Louisiana on the 7th of November, 1876, in the ap- 
pointment of presidential electors ? This is a question far above party. 
It goes directly to the constitutional right of the people of every State 
in the American Confederacy to select in manner and form prescribed 
by law their rulers, both Federal and State. 

If it be constitutional for this returning board, perpetual in its or- 
ganization and unlimited in its power, to pass absolutely upon the suf- 
frages of the entire electors of Louisiana, rejecting as many or as few 
of the votes of the State as they may in their discretion determine, 
and changing at their will the true return of the vote, is not that 
an end of free government ? If such action be constitutional in Louisi- 
ana, would it not be equally so in New York, Pennsylvania, and 
Ohio? Could not any one of those States create returning boards 
through their Legislatures, and obtain such returns of the election as 
the party character of the Legislature and of the returning board 
might deem expedient ? 

The vote of a State for President and Vice-President would then 
depend, not on the vote of a majority of the people, but upon the will 
or judgment of the returning board — whether honest or upright, does 
not lessen the danger — as to what that vote should be declared to be. 
Mr. President, what State in the American Union would tolerate such 
an exercise of power as the returning board of Louisiana has exercised 
for years ? How long could it be permitted and our liberty be pre- 
served ? 

But I insist that the returning board of Louisiana had no jurisdic- 
tion whatever, to canvass or pass upon the vote for the appointment 
of electors in Louisiana. 

I persuade myself that I can make this entirely clear to my republi- 
can brethren in this Chamber who are lawyers. The question of juris > 



11 

diction rests upon the true construction of the election laws of Louisi- 
ana. No one denies, that the appointment of electors is exclusively a 
matter of State jurisdiction, and that presidential electors are State 
officers. The Constitution of the United States declares : 

Each State shall appoint, in such manner as the Legislature thereof may direct, a 
number of electors, equal to the whole number of Senators and Representatives to 
which the State may be entitled in the Congress : but no Senator or Representative, 
or person holding an office of trust or profit under the United States, shall be ap- 
pointed an elector. 

It devolves upon those who claim, like the Senator from Ohio, that 
the returning hoard of Louisiana was clothed with jurisdiction to can- 
vass the vote of that State for the appointment of electors to produce 
the legislative act of that Commonwealth which confers it. The 
Legislature of Louisiana has either directed the manner in which 
electors in that State shall he appointed, or there is no authority to ap- 
point them. The Senator from Ohio [Mr. Sherman] claims that the 
election law of 1872 and amendments confer jurisdiction upon the re- 
turning hoard to canvass these returns for the appointment of elec- 
tors. 

Let us look, then, to the act of November 20, 1372, the first sec- 
tion of which declares — 

That all elections for State, parish, and judicial officers, for members of the Gen- 
eral Assembly, and for members of Congress shall be held on the first Monday in 
November, and said elections shall be styled the general elections. They shall be 
held in the manner and form and subject to the regulations hereafter prescribed, 
and no other. 

The second section of the same act provides — 

That five persons, to be elected by the senate from all political parties, shall be 
the returning officers for all elections in the State, a majority of whom shall consti- 
tute a quorum and have power to make return of all elections. 

The twenty-ninth section declares — 

That in every year in which an election shall be held for electors of President 
and Yice-President, such election shall be held at the time fixed by act of Congress. 

By the seventy-first section it is provided — 

That this act shall take effect from and after its passage, and that all others on 
the subject of election laws be, and the same are hereby, repealed. 

The foregoing sections of the act of 1872, which I have quoted, con- 
tain all the provisions that 1 deem material to the determination of 
the question of the jurisdiction of the returning hoard. 

It will be perceived that the seventy-first section of this act directly 
repeals all other election laws in Louisiana. 

At the time of the passage of the act of 1872 two acts had been 
in force in the State of Louisiana touching the appointment of 
presidential electors : The act of 1368, which was re-enacted by the 
revised statutes of Louisiana adopted in 1870. I will quote two or 
three of the provisions of this latter act : 

Sec. 2824. Every qualified voter in the State shall vote for electors as follows : 
Two persons shall be selected from the State at large and one person shall be chosen 
from each congressional district in this State ; and in case any ticket shall contain 
two or more names of persons residing in the same district, (except the two chosen 
from the State at large,) the first of such names only shall be considered as duly 
voted for. 

Sec. 2826. Immediately after the receipt of a return from each parish, or on the 
fourth Monday of November, if the returns should not sooner arrive, the governor, 
in presence of the secretary of state, the attorney-general, a district judge of the 
district in which the seat of government maybe established, or any two of them, 
shall examine the returns and ascertain therefrom the persons who have been duly 
elected electors. 

Sec 2829. The electors shall meet at the seat of government on the day appointed 
for their meeting by the act of Congress, the first Wednesday in December, and 



12 

shall then and there proceed to execute the duties and services enjoined upon them 
by the Constitution of the United States, in the manner therein prescribed. 

Sec. 2830. It any one or more of the electors chosen by the people shall fail from 
any cause whatever to attend at the appointed place at the hour of four p. m. of the 
day prescribed for their meeting, it shall be the duty of the other electors imme- 
diately to proceod by ballot to fill such vacancy or vacancies. 

The first question which occurs is : Did the act of 1872 repeal the act 
of 1868 re-enacted in the revised statutes of Louisiana in 1870 ? The 
words in the seventy-first section of the act of 1872 are broad and 
direct. They expressly declare, " that this act shall take effect from 
and after its passage, and that all others on the subject of election laivs 
be, and the same are hereby, repealed." 

If the act of 1868, re-euacted in the revised statutes of Louisiana in 
1870, was repealed by the seventy-first section of the act of 1872, then 
there was no legislative authority whatever empowering the State of 
Louisiana to appoint electors on the 7th of November, 1876, and the 
vote of that State must be rejected. 

Mr. WEST. If I do not interrupt the Senator 

Mr. STEVENSON. Not at all. I desire information and seek light 
in all quarters. 

Mr. WEST. I want to be informed, and that is the reason I rise 
now. What election law does the Senator refer to as a substitute for 
the law authorizing the appointment of presidential electors and fill- 
ing vacancies in the electoral college ? 

Mr. STEVENSON. The inquiry which I was pressing at the moment 
the Senator from Louisiana interrupted me, was whether the repeal- 
ing clause of the act of 1872 did in fact actually repeal the act of 1868 
authorizing the appointment of presidential electors, which was re- 
enacted in the revised statutes of Louisiana adopted in 1870? If 
such repeal became effective, and the act of 1872 and amendments, were 
the only election laws in force in Louisiana, then there was no legal 
authority in that State for the appointment of electors, and the elec- 
tion on the 7th of November was void, and the returning board could 
have had no jurisdiction to canvass the votes cast for electors. The 
act of 1872 no where authorizes the appointment of presidential elec- 
tors; it makes no provision as to the mode and manner of their ap- 
pointment; whether by the people of Louisiana or by their Legislature; 
whether by congressional districts or general ticket ; and the act makes 
no provision for the filling of vacancies in the electoral college. If, 
therefore, the act of 1872 was the only election law in force in Louisi- 
ana on 7th November, 1876, the election for electors was null and void. 

Mr. WEST. Now will the Senatorpermit me to state my knowledge 
of the case ? 

Mr. STEVENSON. With pleasure. 

Mr. WEST. There is a general law of Louisiana 

Mr. STEVENSON. I have already referred to that. 

Mr. WEST. Relating to electors. 

Mr. STEVENSON. That is the law of 1868. 

Mr. WEST. There is a stipulation in the revised statutes of Lou- 
isiana that all elections for presidential electors shall be conducted 
in the same manner as those for State officers. There is also a pro- 
vision in the revised statutes that on the meeting of the electoral 
college if from any cause whatever any elector fails to be present 
his colleagues shall have the power and authority to supply that va- 
cancy. The reasoning of the Senator is that the repealing clause 
regulating the conduct and the manner of elections and the method 
of making the returns also repealed the power of the State to ap- 
point electors under the provisions of the Constitution of the United 



13 

States and also repealed the power of those electors when appointed 
to till any vacancy. That is the Senators proposition. I leave it to 
the judgment of the Senate. 

Mr. STEVENSON. I have already referred to the act of 1868— re- 
enacted in the revised statutes of 1870 — and quoted the provisions 
touching the appointment of electors in Louisiana. The Senator from 
Louisiana does not understand the inquiry I was pressing. That in- 
quiry was, whether the act of 1888 and of 1870 touching the appoint- 
ment of electors was or was not repealed by the act of 1872, which the 
Senator himself must admit makes no provision for the appointment of 
electors whatever. If that act of 1872 did repeal all other election 
laws in Louisiana, then I insist there was no legislative authority to 
appoint electors, and the term "all elections" did not include presi- 
dential electors. But suppose I admit, ex gratia, what the Senator 
from Louisiana so strongly insists upon, that the act of 1872 did not 
repeal the act for the appointment of presidential electors, passed in 
1868 and re-enacted in the revised statutes of 1870 ; how does that 
help the jurisdiction of the returning hoard to canvass the returns 
for the appointment of presidential electors ? 

If the Senator will turn to the provisions of the Revised Statutes of 
1870,- which he seems to insist have not been repealed by the act of 
1872, but are still in force, he will find that by section 2826 of that 
act, which I have already quoted, it is provided that — 

Immediately after the receipt of a return from each parish, or on the fourth Monday 
of November, if the returns should not sooner arrive, the governor, in the presence 
of the secretary of state, the attorney-general, a district judge of the district in 
which the seat of government may be established, or any two of them, shall ex- 
amine the returns and ascertain therefrom the persons who have been duly elected 
electors. 

Therefore I submit that, if the act of 1872 repealed all other election 
laws, and that act was the only act in force on the 7th November, 1876, 
there was no authority to appoint electors in that State on that day. 
If the act of 1872 did not repeal the act of 1868, re-adopted in there- 
vised statutes of Louisiana in 1870, and the latter is still in force ; in 
that event the governor of Louisiana is to examine the returns of the 
election and make the return. On either horn of the dilemma, there 
is clearly no jurisdiction in this returning board. 

It is not necessary that I shall express at this time any opinion 
whether the act of 1868, re-enacted in the revised statutes of Louisi- 
ana of 1870, was repealed or not. The general rule of law on the 
effect of the repeal of a former law by subsequent legislation is that a 
general statute, without negative words, will not repeal the particular 
provisions of a former act unless the two acts are irreconcilably 
inconsistent. 

The Senator from Ohio [Mr. Sherman] quotes the words of the 
second section of the act of 1872 creating the returning board and 
providing that they " shall be the returning officers for all elections: 
in the State" and triumphantly asks if those words are not broad 
enough to include the elections for the appointment of presidential 
electors? I think not. My construction of the words "all elections" 
is that they are limited and confined by the words of the first section 
of the same act to " elections for State, parish, and judicial officers, 
members of the General Assembly, and for members of Congress." 

This construction is supported by the further fact that the act of 
1872 makes no allusion to the appointment of presidential electors. 
But if the position of the Senator from Louisiana [Mr. West] be true, 
that the revised statutes of Louisiana, adopted in 1870, which it- 



14 

•enacted the statute of 1868, providing for the appointment of presi- 
dential electors, he not repealed by the act of 1872, then the governor, 
and not the returning hoard, is, in the presence of witnesses, to ascer- 
tain the result, with no judicial power to exclude or in any manner 
to interfere with the vote as cast — if that act was repealed by the act 
of 1872, then there was no power conferred, as already stated, to 
iippoint electors. 

I shall not stop to inquire now what tribunal has power to decide 
upon these questions, or the mode in which it is to be done. My pur- 
pose is accomplished in attempting to show that the returning board 
of Louisiana was clothed with no power, judicial or ministerial, to 
canvass the returns for the appointment of electors in Louisiana. 

Mr. President, the judicial power claimed by the Senator from Ohio, 
[Mr. Sherman] and by the Senator from Louisiana, [Mr. West] for 
this returning board to canvass and exclude the votes cast for the ap- 
pointment of electors, is wholly inconsistent with and in direct con- 
travention of the express requirements and limitations of the act of 
1872, for securing the free suffrage of the whole people. 

Why prescribe duties for the commissioners of elections, or the su- 
pervisor of registration, as to the mode, manner, and time in which 
votes are to be counted, or compiled statements of the true result of 
the votes cast at every precinct in Louisiana are to be made up and 
returned, if the returning board can judicially disregard them, and re- 
ject as many or retain as many of the votes actually cast as they may 
in their discretion determine ? 

In a word does not the judicial power claimed by the Senator from 
Ohio [Mr. Sherman] for this returning board of Louisiana to canvass 
the returns for the appointment of electors in that State, rejecting 
and admitting as many or as few of the votes cast by the people as 
that board may determine, virtually invest them with the arbitrary 
power of deciding the presidential election, should the result of that 
election depend on the vote of Louisiana ? 

Mr. President, what a problem to confront the American people at 
the beginning of the second century of our free institutions ! 

Who can measure the momentous issues which the safe solution of 
such a question directly involves ? Who shall measure the responsibil- 
ity of those who, under the Constitution and laws, must shortly be 
called upon to determine it ? I will by no act or word anticipate the 
excitement of that hour. I can only invoke the divine Ruler of the ' 
universe, whose blessings have been so plenteously vouchsafed to our 
country during the first century of its existence, when that hour comes 
to inspire the hearts of our entire people with wisdom, courage, and 
calmness enough to see that its settlement rests not on any narrow 
plane of party expediency or individual political success, but the 
higher and nobler one of an enlightened and enlarged American 
patriotism. 



LIBRARY OF CONGRESS 



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